January 10, 2014

Privacy and the NSA – the International Covenant on Civil and Political Rights

On a mailing list which I am following, someone suggested in relation to privacy and the NSA:

“There is probably already an international treaty or resolution at https://www.treaties.un.org dealing with privacy of communications. But, the NSA probably does not pay much attention, if they are even aware of these statements at all. NSA will, however, pay attention to the US Executive, US Courts and/or US Congress because these agencies have real power over it.”

Somehow the suggestion to check on an international privacy treaty seemed like an interesting challenge to me. It has been a very interesting exercise, even though I need to add the caveat that I am not a member of the legal profession, but only an interested lay person.

Summary (for those who don’t want to read my full and lengthy commentary):

There is such an international treaty, the ICCPR, it has been signed and ratified by the US Senate, but it does not create a law of the nation that can be independently executed, and Congress has not passed any enabling legislation. The US has already been notified by the UN HRC that this is not ok, and a review will take place in March 2014.

Full commentary below.
(Referenced URLs have been included at the bottom for better readability.)

The resolution on “The right to privacy in the digital age” that Brazil and Germany proposed and which the General Assembly adopted at the UN (1) was referring to such an international treaty dealing with privacy of communications, namely the International Covenant on Civil and Political Rights (ICCPR).(2)

It has been noted by the US Senate that

“The Covenant is part of the international community’s early efforts to give the full force of international law to the principles of human rights embodied in the Universal Declaration of Human Rights and the United Nations Charter. The Civil and Political Rights Covenant is rooted in western legal and ethical values. The rights guaranteed by the Covenant are similar to those guaranteed by the U.S. Constitution and the Bill of Rights.” (4.A)

Clearly, it is correct to say that the NSA does not have to directly pay attention to
such a treaty. However, through ratification in the US Congress, usually (in theory) such treaties become part of the law of the nation.

In such a case, the President, who is the Chief of the Executive Branch of Government, and who takes an oath of office to protect the Constitution (and the laws of the land), would need to tell his executive agencies, including the NSA, to follow the law created through
ratification of such a treaty and through follow-on enactment of national laws giving power to such treaty stipulations.

However, here comes the caveat. While the US did sign and ratify that treaty in 1992, they did also include a number of reservations, understandings, and declarations. (3)

The first of the declarations states:

“(1) That the United States declares that the provisions of Articles 1 through 27 of the Covenant are not self-executing.” (4)

As a clarification, the Senate added in its report on the deliberations:

“For reasons of prudence, we recommend including a declaration that the substantive provisions of the Covenant are not self-executing. The intent is to clarify that the Covenant will not create a private cause of action in U.S. courts. As was the case with the Torture Convention, existing U.S. law generally complies with the Covenant; hence, implementing legislation is not contemplated.” (4.A, page 20)

This means that the ratification does not create independent US law that could be pursued in a US Court, but only binds the US internationally. This interpretation has been upheld in Court (5, 6), but is being challenged by some constitutional scholars. (7)

According to the US Court of Appeals for the Sixth District:

“‘Courts in the United States are bound to give effect to international law and to international agreements, except that a ‘non-self-executing’ agreement will not be given effect as law in the absence of necessary authority.’ Restatement (Third) of Foreign Relations Law 111 (1987). Neither the American Declaration nor the International Covenant is self-executing, nor has Congress enacted implementing legislation for either agreement.” (6)

The general comment by the Human Rights Committee (1994) condemns this practice:

“Of particular concern are widely formulated reservations which essentially render ineffective all Covenant rights which would require any change in national law to ensure compliance with Covenant obligations. No real international rights or obligations have thus been accepted. And when there is an absence of provisions to ensure that Covenant rights may be sued on in domestic courts, and, further, a failure to allow individual complaints to be brought to the Committee under the first Optional Protocol, all the essential elements of the Covenant guarantees have been removed.” (8)

And in 2006, the Human Rights Committee concluded its remarks about the reports by the US government, and under section C. Principal subjects of concern and recommendations makes specific mention of the NSA:

“[..] the Committee is concerned that the State Party, including through the National Security Agency (NSA), has monitored and still monitors phone, email, and fax communications of individuals both within and outside the U.S., without any judicial or other independent oversight.” (9)

The HRC (2006) further recommends:

“The State party should review sections 213, 215 and 505 of the Patriot Act to ensure full compatibility with article 17 of the Covenant. The State party should ensure that any infringement on individual’s rights to privacy is strictly necessary and duly authorized by law, and that the rights of individuals to follow suit in this regard are respected.” (9)

A review meeting scheduled for the 109th session of the UN HRC in the second half of October 2013 has been postponed until March 2014 on request by the USA citing the government shutdown as a reason. (10, 11) The next review on 14 March 2014 could become interesting, having the NSA as a subject at sections 332ff of the US Report. (12)

In light of this, it appears to me that the US may perhaps be liable by international law to ensure the human and civil rights of its citizens and those of people from other nations. However, if any individual feels his/her rights may have been violated by the US executive (e.g. NSA), and presses charges in a US Court, such Court will refuse to make a
judgement, citing lack of jurisdiction under the circumstances of the ratification with the given reservations and declarations.

The only way out could be to challenge this interpretation in the Supreme Court. The Supreme Court of North Dakota in January 2004, however, has already upheld the interpretation of the “not self-executing” clause of the Senate ratification, summarizing a number
of appelate court cases. (13) The (federal) US Supreme Court has to my knowledge not yet made a judgement specifically on that particular clause in relation to the ICCPR.

What is known is an opinion of Chief Justice Marshall, writing in Foster v. Neilson, 27 U.S. 253, 314-15 (1829):

“Our constitution declares a treaty to be the law of the land. It is, consequently, to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engages to perform a
particular act, the treaty addresses itself to the political, not the judicial department, and the legislature must execute the contract before it can become a rule for the Court.” (14)

Perhaps we need to realize that laws and international treaties have entered a new era and we need to continuously challenge and advance human rights. I think this is the essence of the concluding remark by Harold Hongju Koh, legal adviser to the US Dept. of State, in his speech at Georgetown Law in October 2012:

“Make no mistake: this is not your grandfather’s international law, a Westphalian top-down process of treatymaking where international legal rules are negotiated at formal treaty conferences, to be handed down for domestic implementation in a top-down way. Instead, it is a classic tale of what I have long called “transnational legal process,” the dynamic interaction of private and public actors in a variety of national and international fora to generate norms and construct national and global interests. The story is neither simple nor static. Twenty-first century international lawmaking has become a swirling interactive process whereby norms get “uploaded” from one country into the international system, and then “downloaded” elsewhere into another country’s laws or even a private actor’s internal rules.” (15)

 

References:

  1. Draft of Resolution: “The right to privacy in the digital age”
  2. International Covenant on Civil and Political Rights (ICCPR)
    1. http://www.hrcr.org/docs/Civil&Political/intlcivpol.html
    2. https://treaties.un.org/doc/Publication/UNTS/Volume%20999/volume-999-I-14668-English.pdf
  3. Wikipedia entry:
  4. US Senate Ratification (and reservations):
    1. (search for treaty 95-20, 95th Congress)
    2. Background on US ratification:
  5. US Court of Appeals (First Circuit) judgement including a reference on non-self-execution of the treaty:
  6. US Court of Appeals (Sixth Circuit) notes (Footnote 134):
  7. Berkeley Law School: John C. Yoo, “Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding, 99 Colum. L. Rev. 1955 (1999)”
  8. Human Rights Committee (1994) report (CCPR/C/21/Rev.1/Add.6):
  9. Human Rights Committee (2006) concluding observations (CCPR/C/USA/CO/3/Rev.1):
  10. Postponement of US review by UN HRC (2013)
  11. Agenda for the 110th session of the UN HRC
  12. US Report (CCPR/C/USA/4) to the 110th session of the UN HRC
  13. Supreme Court of North Dakota decision
  14. US Chief Justice Marshall’s opinion:
  15. Twenty-First Century International Lawmaking
July 30, 2013

NSA surveillance hurts U.S. businesses

For many years I have been a strong believer in the benefits of the technology powering our modern information society. I have advocated that the eco-system arising from the merger of computers and communications will ultimately help people in their socio-economic development. I have been a staunch supporter of triple-play (merger of IT, telecom and TV) and quadruple-play (IT, telco, TV and mobile) technologies, thinking that the more we can share information, the better it will be for us individually and for our society overall.

Uncle Sam Listens In

Original image by Jeff Schuler. Licensed under the Creative Commons Attribution 2.0 Generic license.

Surveillance changes everything

However, the revelations triggered by Edward Snowden over the past eight weeks about widespread snooping in on the electronic information we leave behind in this information-rich environment, the news about widespread spying by our own government agencies, and by those of friendly and not-so-friendly governments have made me re-examine my own assumptions and attitudes towards sharing my details with various commercial Internet services.

Turning away from U.S. products and services

Whereas before, I have not had a problem maintaining phone numbers, email addresses or my Skype name on Facebook, today I deleted those. Whereas before, I had no problem keeping my rĂŠsumĂŠ and other personal files in my Google Drive, today, I deleted all files from the service. Whereas I am glad that Microsoft is offering me SkyDrive, today I have decided that I will refrain from using the service.

Next will be Apple’s iCloud, where my iPhone syncs a lot of personal things from me. From now on, I am working with a cloud service under my control. I stopped using Google Chrome today over concerns that I may be tracked more than I would like to be, and switched back to Mozilla’s Firefox browser, which is giving me more control over my privacy settings. As of this week, I am no longer using Microsoft Outlook and have changed to Mozilla’s Thunderbird, although Outlook has provided me with a very good user experience over the past decade or more. My Outlook Calendar is no longer, and the other calendar(s) which I used to sync with Yahoo and Gmail and iCloud is now going to be synced only with my cloud, using open source software under a free license.

Surveillance hurts business interests

This is what surveillance does to U.S. businesses. Customers like me will turn away from proprietary software, from commercial vendors, and increasingly will turn to free and open software. And if even I, who for over twenty years have been a strong supporter of all these technologies, if even I am starting to turn away from U.S. based providers, then it is clear that many others will do the same. And this will hurt U.S. business interests. And if U.S. businesses lose money, then also the U.S. as a whole will be hurt. I really feel sorry for the mostly U.S. based businesses, where many of my professional friends and colleagues work. I trust most people in these businesses are good people. I also trust that most of these businesses don’t want to share my personal data with anyone. However, the current situation with secret laws, secret courts, widespread data collection by U.S. intelligence agencies operating “lawfully” forces me to turn away from U.S.-based services. I have regrettably lost trust in “the system”.

Re-evaluating assumptions and attitudes towards data privacy

It is really ironic that someone like me, who has been an outspoken advocate for all the good things this information society and information technology revolution is bringing us, is going through this exercise. But maybe it will turn out to be a healthy exercise. With whom do I want to share this or that information about myself? In the past, I have of course thoroughly examined, evaluated and adjusted my privacy settings in Facebook, Twitter, LinkedIn, Google+ and other such online services. But in other respects, I have been more trusting that the companies offering email services like Yahoo or Gmail, or cloud services like Microsoft Skydrive, Google Drive, Apple’s iCloud, etc will keep my personal data private to myself. However, what we all have had to learn in the past few weeks results in a loss of our trust in the ability (and perhaps the willingness) of those companies to protect our privacy when ordered by law enforcement authorities.

Nothing to hide – nothing to worry?

NSA headquarters

The NSA headquarters in Fort Meade, Maryland. Photograph: EPA

Well, there is the argument that “those who have nothing to hide” will have nothing to worry about. This is the argument that I have trusted in the past, that the law enforcement and spy agencies will only go after criminals and terrorists. That they will do so only after having obtained a warrant from a judge, that there will be sufficient judicial and parliamentary oversight over the process, ensuring my civil rights. But what has transpired over the past weeks is that this argument is thoroughly wrong-footed. Because these information-hungry agencies are conducting a sweeping vacuuming of all available data, regardless of reasonable suspicions about people, regardless of whether the data belongs to domestic or foreign individuals. So, the “nothing to hide” argument is wrong, because it is not targeted individuals whose data is being vacuumed into the great data abyss of those intelligence agencies, but the data of all of us, regardless of any suspicion.

NSA spying on 4chan

Everyone has something to hide – it’s a central aspect of the right to privacy

And just like most people, of course do I have something to hide. Nothing that would be criminally suspect, of course, but my bank account is and ought to be private, just like my medical records, my phone records, my religious affiliation, the friends I speak with, the letters I receive, the pictures I take of my son, or the books I buy on Amazon. We have a constitution that demands our government to respect our civil rights, yet I get the distinct feeling that these constitutional rights are now under threat precisely by those who claim to be working for us, to guarantee for our security. Thus, somehow, I feel less secure now, less secure because I fear for my freedoms, I’m afraid that someone is taking away my civil rights.

 

Vote for change – talk to your representative

Briefwahl

Š dpa

I want to live in a free society, where we can speak out freely what we think, without the fear that whatever we say anywhere anytime can be used against us. That’s why I’m not going to give up and hide. We have elections, and our politicians need to listen. We need more oversight, a stop to suspicion-less data collection, and a lot more transparency and accountability of the surveillance agencies worldwide. I don’t have a vote in the U.S. elections, so I hope my many American friends will do the right thing and call their Congressman, their Senator. I hope they will make sure their voices are heard. I have to trust my ability to engage with lawmakers in my country to protect my constitutional rights, my civil rights, my human rights. Our next election is less than two months ahead.

August 2, 2012

World Bank ICT Strategy 2012-2015: ICT for Greater Development Impact

World Bank Group Announces New Focus on Using
ICT for Greater Development Impact

via News & Broadcast – World Bank Group Announces New Focus on Using ICT for Greater Development Impact.

The Strategy’s Three Pillars

Transform: Making development more open and accountable, and improving service delivery – for instance, education, health, and financial services.

Innovate: Developing competitive IT-based service industries and fostering ICT innovation across the economy – with a focus on job creation, especially for women and youth.

Connect: Scaling up affordable access to broadband – including for women, disabled citizens, disadvantaged communities, and people living in remote and rural areas.

 

Download the World Bank Information and Communication Technology Sector Strategy 2012-2015 [PDF]
and provide feedback here what you think about it. Is the World Bank on te right track? Can it deliver on the promises?

August 2, 2012

IGF 2012 Online Registration has started

 The Seventh Annual Internet Governance Forum (IGF) Meeting will be held in Baku, Azerbaijan from 6-9 November 2012. The proposed main theme for the meeting is:

‘Internet Governance for Sustainable Human, Economic and Social Development’.

Online registration for the IGF 2012 meeting is now open. It will close on October 15 and the onsite registration will open on Friday 2nd November at the Baku Expo Centre.

To register for the Internet Governance Forum 2012 in Baku, Azerbaijan, please use the Online Registration Form at: https://comanche.vervehosting.com/~wgig/igf/registrationb/threeb.php

via Baku registration form.

Also see the IGF Website for the preparatory process: http://www.intgovforum.org/cms/component/content/article/114-preparatory-process/927-igf-2012

And check out the host country Website: http://igf2012.com/

 

July 19, 2012

History of the Internet in a Nutshell

 

Check out the interactive Infographic History of the Internet in a Nutshell on mashable.com

These have been 21 very exciting years for me since I started using the Internet in late 1990!

How many of the developments pictured in the above Infographic do you remember?

July 7, 2012

UN Human Rights Council – The promotion, protection and enjoyment of human rights on the Internet

The following is the text of the landmark decision by the Human Rights Council of the United Nations, adopted without a vote on 5 July 2012. The press release of 6 July 2012 summarizes the resolution as follows:

“In a resolution on the promotion, protection and enjoyment of human rights on the Internet the Council affirmed that the same rights that people have offline must also be protected online, in particular freedom of expression.”

United Nations – Document A/HRC/20/L.13

General Assembly

Distr.: Limited

29 June 2012

Original: English

Human Rights Council

Twentieth session
Agenda item 3

Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development

Algeria*, Argentina*, Australia*, Austria, Azerbaijan*, Belgium, Bolivia (Plurinational
State of)*, Bosnia and Herzegovina*, Brazil*, Bulgaria*, Canada*, Chile, Costa Rica,
Côte d’Ivoire*, Croatia*, Cyprus*, Czech Republic, Denmark*, Djibouti, Egypt*,
Estonia*, Finland*, France*, Georgia*, Germany*, Greece*, Guatemala, Honduras*,
Hungary, Iceland*, India, Indonesia, Ireland*, Italy, Latvia*, Libya, Liechtenstein*,
Lithuania*, Luxembourg*, Maldives, Malta*, Mauritania, Mexico, Monaco*,
Montenegro*, Morocco*, Netherlands*, Nigeria, Norway, Palestine*, Peru, Poland,
Portugal*, Qatar, Republic of Moldova, Republic of Korea*, Romania, Serbia*,
Slovakia*, Slovenia*, Somalia*, Spain, Sweden*, the former Yugoslav Republic of
Macedonia*, Timor-Leste*, Tunisia*, Turkey*, Ukraine*, United Kingdom of Great
Britain and Northern Ireland*, United States of America, Uruguay: draft resolution
(* Non-Member State of the Human Rights Council)

20/…The promotion, protection and enjoyment of human rights on the Internet

The Human Rights Council,

Guided by the Charter of the United Nations,

Reaffirming the human rights and fundamental freedoms enshrined in the Universal
Declaration of Human Rights and relevant international human rights treaties, including the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights,

Recalling all relevant resolutions of the Commission on Human Rights and the
Human Rights Council on the right to freedom of opinion and expression, in particular Council resolution 12/16 of 2 October 2009, and also recalling General Assembly resolution 66/184 of 22 December 2011,

Noting that the exercise of human rights, in particular the right to freedom of
expression, on the Internet is an issue of increasing interest and importance as the rapid pace of technological development enables individuals all over the world to use new information and communications technologies,

Taking note of the reports of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, submitted to the Human Rights Council at its seventeenth session,š and to the General Assembly at its sixty-sixth session,² on freedom of expression on the Internet,

  1. Affirms that the same rights that people have offline must also be protected online, in particular freedom of expression, which is applicable regardless of frontiers and through any media of one’s choice, in accordance with articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights;
  2. Recognizes the global and open nature of the Internet as a driving force in accelerating progress towards development in its various forms;
  3. Calls upon all States to promote and facilitate access to the Internet and international cooperation aimed at the development of media and information and communications facilities in all countries;
  4. Encourages special procedures to take these issues into account within their existing mandates, as applicable;
  5. Decides to continue its consideration of the promotion, protection and enjoyment of human rights, including the right to freedom of expression, on the Internet and in other technologies, as well as of how the Internet can be an important tool for development and for exercising human rights, in accordance with its programme of work.
____________

š A/HRC/17/27

² A/66/290

Source: http://www.ohchr.org/Documents/HRBodies/HRCouncil/RegularSession/Session20/A.HRC.20.L.13_en.doc

UN Human Rights – Internet (Word Doc)

 

July 6, 2012

A Victory for the Internet – NYTimes.com


By CARL BILDT

Source: A Victory for the Internet – NYTimes.com.

In a ground-breaking vote on an issue that affects all of us, the United Nations Human Rights Council on Thursday endorsed a resolution upholding the principle of freedom of expression and information on the Internet.

The broad support for the resolution demonstrated that maintaining the free flow of information on the Internet is a global call and not something pushed only by a few Western states.

In recent years I have frequently spoken about Internet freedom, an issue which is a priority to the Swedish government. I have condemned the harassment of bloggers and online activists and called for a strong global coalition of states to support the simple but salient fact that freedom of expression also is applicable to the Internet.

The group of countries that presented this resolution — Brazil, Nigeria, Sweden, Tunisia, Turkey and the United States — truly represent a global coalition. And the support by other states (India, Egypt and Indonesia, to name a few of the more than 80 co-sponsors) and global civil society was overwhelming. Together, we are building a global alliance for the freedom of the Internet.

As technology and the Internet evolve, so should the work in the United Nations. From a limited group of countries rallying behind a short statement on freedom of expression on the Internet two years ago, we have seen the interest and support soar.

The vote in Geneva on Thursday was a breakthrough of fundamental importance. Beyond affirming that freedom of expression applies also to the Internet, the resolution also recognized the immense value the Internet has for global development and called on all states to facilitate and improve global access to it.

We are rapidly entering into a new world of hyperconnectivity. Mobile data traffic alone is set to increase 15-fold in the next five years. It reaches everywhere, and we see the new networks challenging the old hierarchies everywhere.

Just one example: In past decades, massive crimes could be committed in Syria and other countries without us even knowing. But we can now follow what is happening minute by minute, megabyte by megabyte.

Today, with nearly the entire globe covered by mobile networks, the problem of physical access to the Internet is almost a forgotten issue. What is increasingly worrying is what kind of access people are being offered.

We cannot accept that the Internet’s content should be limited or manipulated depending on the flavor-of-the-month of political leaders. Only by securing access to the open and global Internet will true development take place.

The governments of the Human Rights Council now for the first time have confirmed that freedom of expression applies fully to the Internet. A global coalition for a global and open Internet has been formed.

This is truly important, but we must not stop here. The challenge now is to put these words into action to make sure that people all over the world can use and utilize the power of connectivity without having to fear for their safety. This work is far from over.

Carl Bildt is foreign minister of Sweden.

 

July 4, 2012

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